547 S.E.2d 651 | Ga. Ct. App. | 2001
Lead Opinion
Giraldo and Brutus were indicted for trafficking in cocaine (more than 400 grams) and possessing cocaine with intent to distribute, arising out of a “reverse sting” operation.
Giraldo and Brutus do not argue that the reverse sting operation itself violated their rights. Rather, in eight separate enumerations, they contend that the cocaine used in the operation was illegal because it should have been earlier destroyed pursuant to OCGA § 16-13-49 (y)
At the hearing on the motion, Terry Mills, a deputy director with the Georgia Bureau of Investigation (GBI), testified that the State crime laboratory maintains a supply of contraband that it loans out to law enforcement agencies, both federal and state, for reverse sting operations. The powder cocaine maintained by the lab comes from two cases dating from 1982 and 1985. In each case, approximately 1,000 kilograms of cocaine had been thrown from an airplane.
Mills testified that when this cocaine was no longer needed for evidentiary purposes in connection with the cases against the pilots, the laboratory kept it for future use in reverse stings. The laboratory has verified that these substances are cocaine. Law enforcement authorities may borrow cocaine from the laboratory for use in reverse stings. If the operation leads to criminal prosecution, the cocaine is returned to the laboratory, assigned a case number, and reanalyzed to verify what the substance is. An official report on the identity of
In 1999, the laboratory loaned three kilograms of cocaine from this supply to the DeKalb County Drug Task Force for use in a reverse sting. Both Giraldo and Brutus were arrested in the operation. The cocaine was returned and assigned a case number, and an official report was prepared.
The trial court examined the testimony presented at the hearing and concluded that there was sufficient evidence to meet the requirements under Dean v. Gober that “the owner of the drug [be] known” and that forfeiture proceedings had not been commenced against those drugs. Therefore, the court concluded, the State crime lab was lawfully in possession of the cocaine used in the reverse sting operation against Giraldo and Brutus.
We hold the court did not err in refusing to dismiss the indictments or to suppress the contraband based on such evidence. First, since the State maintained records and showed the trial court who owned the cocaine used in the reverse sting operation, the cocaine was not summarily forfeited to the State and thus the State was not immediately required to destroy same. Second, even if the State were required to destroy the cocaine, the State’s conduct here in failing to meet this obligation and in using the cocaine in a common reverse sting operation does not rise to the level of outrageous conduct that violated fundamental notions of due process and that prejudiced the defendants. Regardless of where the State obtained the cocaine, defendants were not authorized to purchase same.
1. Although the provision in the forfeiture statute requiring destruction of the cocaine was not enacted until 1991, it applies to the cocaine acquired by the crime lab in 1982 and 1985.
OCGA § 16-13-49 is part of the Georgia Controlled Substances Act, which was enacted in 1974, but section 49 was rewritten in 1991 and made effective on July 1 of that year.
2. The cocaine was not summarily forfeited to the State under OCGA § 16-13-49 (y) and therefore was not subject to immediate destruction. Dean v. Gober
The special concurrence reads OCGA § 16-13-49 to conclude, contrary to Dean v. Gober,
3. Even if the State were obligated to destroy the cocaine at issue, the State’s failure to do so does not violate any fundamental notions of due process such that a dismissal of the indictments or a suppression of this contraband would be required. As explained in Gober v. State,
Nevertheless, we do not wish to promote law enforcement’s collection and storage of excessive amounts of illegal drugs. The better practice would be to create a strict procedure governing the retention of illegal drugs from prior investigations, which procedure would set forth the amount of drugs that may be retained and the length of time they may be retained. Also, there should be strict controls on the use of these drugs in law enforcement operations such as the reverse sting operation here. For this reason, we invite and encourage the legislature to develop such guidelines.
Judgments affirmed.
“In reverse sting operations, undercover police officers pose as drug dealers in an area 'known for drug activity and sell cocaine to purchasers. Following the purchase or attempted
OCGA § 16-13-49 (y) provides: “Controlled substances . . . whose owners are unknown are summarily forfeited to the state.”
OCGA § 16-13-49 (u) (1) provides:
Whenever property is forfeited under this article, any property which is required by law to be destroyed or which is harmful to the public shall, when no longer needed for evidentiary purposes, be destroyed or forwarded to the Division of Forensic Sciences of the Georgia Bureau of Investigation or any other agency of state or local government for destruction or for any medical or scientific use not prohibited under the laws of the United States or this state.
272 Ga. 20 (524 SE2d 722) (2000).
Cocaine is a Schedule II controlled substance. OCGA § 16-13-26 (1) (D).
See, e.g., United States v. Russell, 411 U. S. 423 (93 SC 1637, 36 LE2d 366) (1973); United States v. Twigg, 588 F2d 373 (3rd Cir. 1978); Greene v. United States, 454 F2d 783 (9th Cir. 1971); State v. Williams, 623 S2d 462 (Fla. 1993).
See Ga. L. 1974, p. 221 et seq.; Ga. L. 1991, p. 886 et seq. and § 5, p. 913.
See Code Ann. § 79A-828 (1984).
Ga. L. 1991, § 4b, p. 913.
Supra, 272 Ga. at 23-24 (4).
See OCGA § 16-13-26 (1) (D).
See Tate v. State, 264 Ga. 53, 5,4 (1) (440 SE2d 646) (1994).
Supra, 272 Ga. at 23-24 (4).
Id.
Id. at 24-25 (4).
249 Ga. App. 168 (547 SE2d 656) (2001).
Concurrence Opinion
concurring specially.
Although I concede that the improper use of drugs that should have been destroyed does not rise to the level of outrageous conduct as described in the case law, the forfeiture statute clearly required destruction of the cocaine used against Giraldo and Brutus long before it was used against them in a reverse sting. And, I cannot condone use of such drugs under the circumstances. If the legislature intended to allow the practice, it should revise the statute to make it clear. See Gober v. State, 249 Ga. App. 168 (547 SE2d 656) (2001) (Pope, P. J., concurring specially). Also, I write separately to address two other matters.
First, Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (2000), did not, as claimed by the majority, hold that so long as the police keep ownership records for confiscated non-Schedule I controlled substances, they are authorized to use them in reverse stings. Rather, it held that those substances can be used if they have a known owner, but controlled substances whose owners are unknown are summarily forfeited and must be destroyed. Certainly it follows that the failure to keep ownership records would preclude showing the identity of an owner, but keeping ownership records was not the determinative fact. What if the records they keep show no owner? Thus, in this case, the simple fact that the Georgia Bureau of Investigation has records is not sufficient. There still must be proof of a known owner in order to exempt non-Schedule I drugs from forfeiture and destruction.
The only evidence in this case to support the conclusion that the stockpile of cocaine that was being held for use in reverse stings had a known owner is very weak. The GBI deputy director testified only that his records would show who the owner was, but he did not know the names of the owners himself or present his records as evidence. On this basis alone, the trial court concluded there was a “known owner” sufficient to satisfy the statute.
OCGA § 16-13-49 (a) (7) provides that a person is an owner if they have “an interest in [the] property.” OCGA § 16-13-49 (d) (1) provides that all controlled substances “that have been manufactured, distributed, dispensed, possessed, or acquired in violation of” the Georgia Controlled Substances Act “are declared to be contraband and no person shall have a property right in them.” And the GBI deputy director testified that the contraband acquired in both the 1982 and 1985 cases is “for lack of a better term, boat cocaine; in other words, cocaine that’s been manufactured and prepared down in Colombia and smuggled into the U. S.” Therefore, because the two stashes of cocaine in the GBI laboratory are illegal “boat cocaine,” no person has a property right in them; they can have no owner.
It is true that in Dean v. Gober, the Supreme Court recognized that non-Schedule I controlled substances can have a known owner. 272 Ga. at 24 (4). Indeed, OCGA § 16-13-35 (c) (4) authorizes certain persons to, among other things, manufacture controlled substances provided they are properly registered. And deputy director Terry Mills admitted that it is possible to purchase pharmaceutical-grade cocaine. Thus, properly registered persons would be examples of known owners of a controlled substance. But, construed together, OCGA § 16-13-49 (d) and (e) mean that there can be a known owner only if the substance has not been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act.
Also, OCGA § 16-13-35 (c) (4) allows officers and employees of the state while acting in the course of their official duties to possess controlled substances. But, read together with subsections (d), (u) (1), and (y) of OCGA § 16-13-49, this statute means that the officers must destroy all controlled substances that have been manufactured, distributed, dispensed, possessed, or acquired in violation of the Georgia Controlled Substances Act that are no longer needed for evidentiary purposes in the matter in which they were acquired, although they may possess any drugs that do not fall into these categories.
Dean v. Gober did not address this specific point. It held only that the police may use confiscated drugs where there is a known
In short, because the cocaine stored by the GBI is illegally manufactured cocaine, it cannot have a known owner. Under Dean v. Gober, because the owner of the cocaine stockpile was unknown, those drugs had been summarily forfeited pursuant to OCGA § 16-13-49 (y) and “their destruction was mandated by OCGA § 16-13-49 (u) (1).” Dean v. Gober, 272 Ga. at 22 (1). It was a violation of the amended forfeiture statute for the GBI to keep it because it was no longer needed for evidentiary purposes in connection with the 1982 and 1985 incidents. Accordingly, the cocaine should have been destroyed long before some of it was used in a reverse sting against Giraldo and Brutus.
OCGA § 16-13-49 (e) essentially provides that where the confiscated property belongs to a legitimate and innocent owner, that property is not subject to forfeiture.